Professional Documents
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1ST SESSION
H. R. ____
To amend title 17, United States Code, to establish an alternative dispute resolution program for
copyright small claims, and for other purposes.
Mr. JEFFRIES (for himself Mr. MARINO, MR. COLLINS, MR. SMITH, MS. CHU, AND MR. LIEU) introduced
the following bill; which was referred to the Committee on the Judiciary
A BILL
To amend title 17, United States Code, to establish an alternative dispute resolution program for
copyright small claims, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in
Congress assembled,
This Act may be cited as the Copyright Alternative in Small-Claims Enforcement Act of
2017 or the CASE Act of 2017.
(a) I N G EN ER A L .Title 17, United States Code, is amended by adding at the end the
following new chapter:
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Sec.
1401. Copyright Claims Board.
1402. Authority and responsibilities of the Copyright Claims Board.
1403. Nature of proceedings.
1404. Registration requirement.
1405. Conduct of proceedings.
1406. Effect of proceeding.
1407. Review and confirmation by district court.
1408. Relationship to other district court actions.
1409. Implementation by Copyright Office.
1410. Funding.
1411. Definitions.
(b) O F F IC ER S A N D S TA F F .
(3) QUALIFICATIONS.
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(4) COMPENSATION.Each Copyright Claims Officer shall be compensated at not
less than the minimum and not more than the maximum rate of pay for SL employees (or
the equivalent) of the Federal Government, including locality pay, as applicable. Each
Copyright Claims Attorney shall be compensated at not more than the maximum
permissible pay for level 10 of GS15 of the General Schedule (or the equivalent),
including locality pay, as applicable.
(5) TERM.Copyright Claims Officers shall serve for 6-year terms that are
renewable by the Librarian of Congress upon recommendation of the Register of
Copyrights: Provided, however, That the terms for the initial Copyright Claims Officers
appointed hereunder shall be as follows: one Copyright Claims Officer shall be appointed
for 4 years, the second shall be appointed for 5 years, and the third shall be appointed for 6
years.
(a) F U N C T IO N S .
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(1) COPYRIGHT CLAIMS OFFICERS.Subject to the provisions of this chapter
and applicable regulations, the functions of the Copyright Claims Officers shall be as
follows:
(B) To ensure that claims, counterclaims, and defenses are properly asserted and
otherwise appropriate for resolution by the Copyright Claims Board.
(C) To manage the proceedings before them and render rulings pertaining to the
consideration of claims, counterclaims, and defenses, including scheduling, discovery,
evidentiary, and other matters.
(I) To maintain records of the proceedings before them, certify official records of
such proceedings as needed, and make the records in such proceedings available to the
public in accordance with law.
(J) To carry out such other duties as are prescribed in this chapter.
(K) When not engaged in performing their duties as prescribed in this chapter, to
perform such other duties as may be assigned by the Register of Copyrights.
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(A) To provide assistance to the Copyright Claims Officers in the administration
of their duties under this chapter.
(C) When not engaged in performing their duties as prescribed in this chapter, to
perform such other duties as may be assigned by the Register of Copyrights.
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1403. Nature of proceedings
(b) S TA TU TE O F L IM I TA T IO NS .
(1) A claim for infringement of an exclusive right of copyright provided under section
106 of this title, asserted by the legal or beneficial owner of such exclusive right at the time
of infringement pursuant to which the claimant seeks damages, if any, within the limitations
set forth in subsection (e)(1).
(3) Notwithstanding any other provision of law, a claim pursuant to section 512(f) of
this title for misrepresentation in connection with a notification of claimed infringement or a
counter notification seeking to replace removed or disabled material: Provided,
however, That any remedies in such a proceeding before the Copyright Claims Board shall
be limited to those available under this chapter.
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(A) arises under section 106 or section 512(f) of this title, and out of the same
transaction or occurrence that is the subject of a claim of infringement brought under
paragraph (1), a claim of noninfringement brought under paragraph (2), or a claim of
misrepresentation brought under paragraph (3); or
(5) A legal or equitable defense, pursuant to this title or otherwise available under
law, in response to a claim or counterclaim asserted under this subsection.
(6) A single claim or multiple claims permitted under paragraph (1), (2), or (3) by one
or more claimants against one or more respondents: Provided, however, That all claims
asserted in any one proceeding arise out of the same allegedly infringing activity or
continuous course of infringing activities and do not in the aggregate result in a claim for
damages in excess of the limitation provided in subsection (e)(1)(D).
(2) A claim or counterclaim that has been finally adjudicated by a court of competent
jurisdiction or that is already pending before a court of competent jurisdiction, unless such
court has issued a stay to permit such claim or counterclaim to proceed before the Copyright
Claims Board.
(4) A claim or counterclaim asserted against a person or entity residing outside of the
United States.
(e) P ER M IS S IB LE R E ME D IE S .
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subparagraph (D), with respect to a claim or counterclaim for infringement of
copyright, the Copyright Claims Board may award
(i) actual damages and profits determined in accordance with section 504(b)
of this title, which determination shall include in appropriate cases consideration
of whether the infringing party has agreed to cease or mitigate the infringing
activity as provided in paragraph (2); or
(I) With respect to works timely registered under section 412 of this
title, such that they are eligible for an award of statutory damages under that
section, such limited statutory damages shall not exceed $15,000 per work
infringed.
(II) With respect to works not timely registered under section 412 of
this title, but eligible for an award of statutory damages under this section,
limited statutory damages shall not exceed $7,500 per work infringed, or a
total of $15,000 in any one proceeding.
(III) The Copyright Claims Board shall not make any finding or
consider whether the infringement was committed willfully in making an
award of limited statutory damages.
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$30,000, exclusive of any attorneys fees and costs that may be awarded under section
1405(x)(2).
(1) the Copyright Claims Board shall not render a determination in the proceeding
until a registration certificate has been issued by the Copyright Office, submitted to the
Copyright Claims Board and made available to the other parties to the proceeding, and the
other parties have been provided an opportunity to address it;
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(3) if the Copyright Claims Board receives notice that registration has been refused by
the Copyright Office, the proceeding shall be dismissed without prejudice.
(d) To ensure that actions before the Board proceed in a timely manner, the Register of
Copyrights shall promulgate regulations providing the Copyright Office with the authority
to issue a certificate of registration on an expedited basis. Such regulations shall treat
applications for registration certificates pertaining to a proceeding before the Board on an
expedited basis and separately from all other applications for certificates of registration,
except those applications subject to special handling under 37 CFR 201.15.
1405. Conduct of proceedings
(b) R EC O R D .The Copyright Claims Board shall maintain records documenting the
proceedings before it.
(1) an attorney; or
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(2) a law student who is qualified under applicable law governing law students
representation of parties in legal proceedings and who provides such representation on a pro
bono basis.
(f) R E V IE W O F C LA I M S A N D C O UN TE R C L A IMS .
(A) If the claim is found to comply, the claimant shall be so notified and
instructed to proceed with service of the claim as provided in subsection (g).
(B) If the claim is found not to comply, the claimant shall be notified that the
claim is deficient and permitted to file an amended claim within 30 days of the date of
such notice without the requirement of an additional filing fee. If the claimant files a
compliant claim within that period, he or she shall be so notified and instructed to
proceed with service of the claim. If the claim is refiled within the 30-day period but
still fails to comply, the claimant will again be notified that the claim is deficient and
provided a second opportunity to amend it within 30 days without the requirement of
an additional filing fee. If the claim is refiled again within the second 30-day period
and is compliant, the claimant shall be so notified and instructed to proceed with
service, but if the claim still fails to comply, upon confirmation of its noncompliance
by a Copyright Claims Officer, the proceeding shall be dismissed without prejudice.
The Copyright Claims Board shall also dismiss without prejudice any proceeding in
which a compliant claim is not filed within the applicable 30-day time period.
(C) For purposes of this paragraph, a claim against an online service provider for
infringement by reason of storage of or referral or linking to infringing material that
may be subject to the limitations on liability set forth in section 512(b), section 512(c)
or section 512(d) of this title, shall be considered noncompliant unless the claimant
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affirms in the statement required under subsection (e)(1) of this section that he or she
has previously notified the service provider of the claimed infringement in accordance
with section 512(b)(2)(E), section 512(c)(3) or section 512(d)(3) of this title, as
applicable, and the service provider failed to remove or disable access to the material
expeditiously upon the provision of such notice: Provided, however, That if a claim is
found to be noncompliant under this subparagraph, the Copyright Claims Board shall
provide the claimant with information concerning the service of such a notice pursuant
to the relevant provision of this title.
(3) DISMISSAL FOR GOOD CAUSE.The Copyright Claims Board shall dismiss
a proceeding without prejudice if, upon reviewing a claim or counterclaim, or at any other
time in a proceeding, the Copyright Claims Board concludes that it is unsuitable for
determination by the Copyright Claims Board, including due to the following:
(C) Determination of a relevant issue of law or fact that could exceed the
competence of the Copyright Claims Board.
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(1) The notice of the proceeding shall adhere to a prescribed form and shall set forth
the nature of the Copyright Claims Board and proceeding, the respondents right to opt out,
and the consequences of opting out and not opting out, including a prominent statement
that, by not opting out within the 30-day period, the respondent
(A) will forgo the opportunity to have the dispute decided by a court created
under article III of the Constitution of the United States; and
(B) will be waiving the right to a jury trial regarding the dispute.
(2) The copy of the claim served on the respondent shall be as it was filed with the
Copyright Claims Board.
(3) Personal service of a notice and claim may be effected by an individual who is not
a party to the proceeding and is over the age of 18.
(A) following State law for serving a summons in an action brought in courts of
general jurisdiction in the State where service is made; or
(i) Delivering a copy of the notice and claim to the individual personally.
(A) following State law for serving a summons in an action brought in courts of
general jurisdiction in the State where service is made; or
(B) delivering a copy of the notice and claim to an officer, a managing or general
agent or any other agent authorized by appointment or by law to receive service of
process in an action brought in courts of general jurisdiction and, if the agent is one
authorized by statute and the statute so requires, by also mailing a copy of each to the
respondent.
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(6) To request a waiver of personal service, the claimant may notify a respondent by
first class mail or other reasonable means that a proceeding has been commenced in
accordance with regulations established by the Register of Copyrights, which shall include
the following:
(A) Any such request shall be in writing and addressed to the respondent, and be
accompanied by a prescribed notice of the proceeding and copy of the claim as filed
with the Copyright Claims Board, as well as a prescribed form for waiver of personal
service, and a prepaid or costless means of returning the form.
(B) The request shall state the date it was sent and provide the respondent 30
days to return the signed waiver form, which signed waiver shall constitute acceptance
and proof of service as of the date it is signed for purposes of this subsection.
(7) A respondents waiver of personal service shall not constitute a waiver of the
respondents right to opt out of the proceeding: Provided, however, That a respondent who
timely waives personal service and does not opt out shall be allowed an additional 30 days
beyond the amount of time normally permitted under the applicable procedures of the
Copyright Claims Board to submit a substantive response to the claim, including any
defenses and counterclaims.
(8) A minor or an incompetent individual may only be served by following State law
for serving a summons or like process on such an individual in an action brought in the
courts of general jurisdiction of the State where service is made.
(9) Service of a claim and waiver of personal service may only be effected within the
United States.
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(j) S C H E D U LIN G .Upon confirmation that a proceeding has become an active
proceeding, the Copyright Claims Board shall issue a schedule for future conduct of the
proceeding. A schedule issued by the Copyright Claims Board may be amended by the
Copyright Claims Board in the interests of justice.
(1) the parties to a proceeding shall be permitted to make requests to the Copyright
Claims Board to address case management and discovery matters, and submit responses
thereto; and
(2) the Copyright Claims Board may request or permit parties to make submissions
addressing relevant questions of fact or law, or other matters, including matters raised sua
sponte by the Copyright Claims Officers, and offer responses thereto.
(1) upon request of a party, and for good cause shown, the Copyright Claims Board
shall have the discretion to approve additional limited discovery in particular matters, and
may request specific information and documents from participants in the proceeding and
voluntary submissions from nonparticipants;
(2) upon request of a party, and for good cause shown, the Copyright Claims Board
may issue a protective order to limit the disclosure of documents or testimony that contain
confidential information; and
(3) after providing notice and an opportunity to respond, and upon good cause shown,
the Copyright Claims Board may apply an adverse inference with respect to disputed facts
against a party who has failed timely to provide discovery materials in response to a proper
request for materials that could be relevant to such facts.
(n) E V ID EN C E .The Copyright Claims Board may consider the following types of
evidence, which may be admitted without application of formal rules of evidence:
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(1) Documentary and other nontestimonial evidence that is relevant to the claims,
counterclaims or defenses in a proceeding.
(o) H E A R IN G S .The Copyright Claims Board may conduct a hearing to receive oral
presentations on issues of fact or law from parties and witnesses to a proceeding, including oral
testimony: Provided, however, That
(1) any such hearing shall be attended by at least two of the Copyright Claims
Officers;
(2) the hearing shall be noted upon the record of the proceeding and, subject to
paragraph (3), may be recorded or transcribed as deemed necessary by the Copyright
Claims Board; and
(p) V O LU N TA R Y D IS M IS S A L .
(q) S E TT LE M EN T .At any time in an active proceeding some or all of the parties may
(1) jointly request a conference with a Copyright Claims Officer for the purpose of
facilitating settlement discussions; or
(2) submit to the Copyright Claims Board an agreement providing for settlement and
dismissal of some or all of the claims and counterclaims in the proceeding, which
submission may also include a request that the Copyright Claims Board adopt some or all of
the terms of the parties settlement in a final determination.
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(r) F A C TU A L F IN D IN G S .Subject to subsection (m)(3), the Copyright Claims Board
shall make factual findings based upon a preponderance of the evidence.
(s) D E TE R M IN A T IO N S .
(B) be in writing, and include an explanation of the factual and legal basis of the
decision therein;
(C) pursuant to section 1403(e)(2), set forth any terms by which a respondent or
counterclaim respondent has agreed to cease infringing activity;
(D) pursuant to subsection (q)(2) and to the extent agreed by the parties, set forth
the terms of any settlement to the extent requested by the parties; and
(E) include a clear statement of all damages and other relief awarded, including
pursuant to subparagraphs (C) and (D).
(2) DISSENT.A Copyright Claims Officer who dissents from a decision contained
in a determination may append a statement setting forth the grounds for his or her dissent.
(1) The Copyright Claims Board shall require the claimant to submit relevant
evidence and other information in support of his or her claim and any asserted damages and,
upon review of such evidence and any other requested submissions from the claimant, shall
determine whether the materials so submitted are sufficient to support a finding in favor of
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the claimant under applicable law and, if so, the appropriate relief and damages, if any, to
be awarded.
(2) If the claimant has met his or her burden under paragraph (1), the Copyright
Claims Board shall prepare a proposed default determination and provide written notice to
the respondent at all addresses, including email addresses, reflected in the records of the
proceeding before the Copyright Claims Board, concerning the pendency of a default
determination by the Copyright Claims Board and the legal significance of such
determination. Such notice shall be accompanied by the proposed default determination and
provide that the respondent has 30 days from the date of the notice to submit any evidence
or other information in opposition to the proposed default determination.
(3) If the respondent responds to the notice provided under paragraph (2) within the
30-day period, the Copyright Claims Board shall consider respondents submissions and,
after allowing the other parties to address such submissions, maintain or amend its proposed
determination as appropriate, and the resulting determination shall not be a default
determination.
(4) If the respondent fails to respond to the notice provided under paragraph (2), the
Copyright Claims Board shall proceed to issue the default determination as a final
determination. Thereafter, the respondent may only challenge such determination to the
extent permitted under section 1407(c): Provided, however, That prior to the initiation of
any additional proceedings under section 1407, the Copyright Claims Board shall have the
discretion to vacate the default determination in the interests of justice.
(u) C LA IM A N T S F A I LU R E T O P R OC EE D .
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(v) R EC O N S ID ER A TIO N .A party may, within 30 days of the date of issuance of a final
determination by the Copyright Claims Board, submit a written request for reconsideration of, or
an amendment to, such determination if the party identifies a clear error of law or fact material to
the outcome, or a technical mistake. After providing the other parties an opportunity to address
such request, the Copyright Claims Board shall respond by denying the request or issuing an
amended final determination.
(3) If it is established that on more than one occasion within a 12 month period a party
pursued a claim, counterclaim or defense before the Board for a harassing or other improper
purpose, or without reasonable basis in law or fact, such party shall be barred from initiating
a claim before the Board for a period of 12 months.
(y) Notwithstanding anything to the contrary in this chapter, the Register of Copyrights
may promulgate regulations allowing for the disposition of any claim in which total
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damages sought are $5,000 or less (exclusive of attorneys fees and costs). At a minimum,
any such regulations shall provide (1) for one copyright claims officer to consider and issue
a determination with regard to the claim; and (2) for which a copyright claims attorney
shall review the claim and determine whether the case shall be heard by one officer or the
Board.
(z) A claimant may request the Board to issue a subpoena to a service provider for identification
of an alleged infringer of claimants copyrighted work. The Copyright Office shall
promulgate regulations governing, at minimum, the issuance of the subpoena, the contents
of the request, the contents of the subpoena, and the obligations of a service provider who is
issued a subpoena. The regulations shall further require that the claimant seeking the
subpoena must make a sworn declaration to the effect that the purpose for which the
subpoena is sought is to obtain the identity of an alleged infringer and that such information
will only be used for the purpose of protecting rights under this Act. Such subpoenas shall
be enforceable by the United States District Court for the District of
Columbia. 1406. Effect of proceeding
(a) D E TER M IN A TIO N .Subject to the reconsideration and review processes afforded by
section 1405(v) and 1405(w), respectively, and section 1407(c), the rendering of a final
determination by the Copyright Claims Board in a proceeding, including a default determination
or determination based on failure to prosecute, shall, solely with respect to the parties to such
determination, preclude relitigation before any court or tribunal, or before the Copyright Claims
Board, of the claims and counterclaims asserted and finally determined by such determination,
and may be relied upon for such purpose in a future action or proceeding arising from the same
specific activity or activities: Provided, however, That
(1) a determination of the Copyright Claims Board shall not preclude litigation or
relitigation as between the same or different parties before any court or tribunal, or the
Copyright Claims Board, of the same or similar issues of fact or law in connection with
claims or counterclaims not asserted and finally determined by the determination of the
Copyright Claims Board;
(3) except to the extent permitted in this subsection and section 1407, no
determination of the Copyright Claims Board shall be cited or relied upon as legal precedent
in any other action or proceeding before any court or tribunal, including the Copyright
Claims Board.
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proceeding before the Copyright Claims Board, including a proceeding that is dismissed, shall
not be cited or relied upon in, or serve as the basis of, any action or proceeding concerning rights
or limitations on rights under this title before any court or tribunal, including the Copyright
Claims Board.
(a) I N G EN ER A L .In any proceeding in which a party has failed to pay monies as
required or otherwise comply with the relief awarded in a final determination of the Copyright
Claims Board, including a default determination or a determination based on failure to prosecute,
the aggrieved party may, within one year of the issuance of such final determination, resolution
of any reconsideration by the Copyright Claims Board or review by the Register of Copyrights,
or issuance of an amended final determination, whichever occurs last, apply to the United States
District Court for the District of Columbia or any other federal district court of competent
jurisdiction for an order confirming the final relief awarded and reducing such award to
judgment. The court shall grant such order and direct entry of judgment unless the determination
is or has been vacated, modified or corrected as permitted under subsection (c). If the United
States District Court for the District of Columbia or any other federal district court of competent
jurisdiction issues an order confirming the relief awarded by the Board, the Court must impose
on the party who failed to pay damages or otherwise comply with the relief, the reasonable
expenses required to secure such order, including attorney fees, incurred by the aggrieved party.
(b) F IL IN G P R O C ED U R ES .
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(1) Notice of the application for confirmation of a determination of the Copyright
Claims Board and entry of judgment shall be provided to all parties to the proceeding before
the Copyright Claims Board, in accordance with the procedures applicable to service of a
motion in United States District Court for the District of Columbia.
(2) The application shall include a certified copy of the final or amended final
determination of the Copyright Claims Board, as reflected in the records of the Copyright
Claims Board, following any process of reconsideration or review by the Register of
Copyrights, to be confirmed and rendered to judgment, as well as a declaration by the
applicant under penalty of perjury that it is a true and correct copy of such determination,
the date it was issued, and whether the applicant is aware of any other proceedings before
the United States District Court concerning the same determination of the Copyright Claims
Board.
(c) C H A L LE N G E S T O T H E D E TE R M IN A TIO N .
(B) Where the Copyright Claims Board exceeded its authority or failed to render
a final and definite determination concerning the subject matter at issue.
(B) The application shall include a certified copy of the final or amended final
determination, as reflected in the records of the Copyright Claims Board following any
process of reconsideration or review by the Register of Copyrights, that is the subject
of the application, as well as a declaration by the applicant under penalty of perjury
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that it is a true and correct copy of such determination, the date it was issued, the basis
for challenge under subsection (c)(1), and whether the applicant is aware of any other
proceedings before the United States District Court concerning the same determination
of the Copyright Claims Board. For the purposes of the application, any judge who
might make an order to stay the proceedings in an action brought in the same court,
may make an order, to be served with the notice of application, staying proceedings to
enforce the award.
(a) R E G U LA T IO N S .
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does not enact a law within such 120-day period that provides in substance that Congress
does not approve of the new rule.
1410. Funding
There are authorized to be appropriated such sums as may be necessary to pay the costs
incurred by the Copyright Office under this chapter that are not covered by fees collected for
services rendered under this chapter, including the costs of establishing and maintaining the
Copyright Claims Board and its facilities.
1411. Definitions
(1) the term party refers to both a party and the partys attorney, as applicable;
(2) the term person (including his and her) refers to both an individual and an
entity that is amenable to legal process under applicable law; and
(3) the term United States has the meaning given in section 101 of this title..
(b) C LER IC A L A ME N D ME N T .The table of chapters for title 17, United States Code, is
amended by adding after the item relating to chapter 13 the following new item:
SEC. 3. IMPLEMENTATION.
The Copyright Claims Board shall begin operation no later than one year after of the date of
the enactment of this Act.
SEC. 4. STUDY.
Not later than 3 years after the issuance of the first determination by the Copyright Claims
Board, the Register of Copyrights shall deliver a study to Congress that addresses
(1) the use and efficacy of the Copyright Claims Board in resolving copyright claims;
(2) whether adjustments to the authority of the Copyright Claims Board, including
eligible claims and works and applicable damages limitations, are necessary or advisable;
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(3) whether greater allowance should be made to permit awards of attorneys fees and
costs to prevailing parties, including potential limitations on such awards;
(4) potential mechanisms to assist copyright owners with small claims in ascertaining
the identity and location of unknown online infringers;
(5) whether the Copyright Claims Board should be expanded to offer mediation or
other nonbinding alternative dispute resolution services to interested parties; and
(6) such other matters as the Register of Copyrights believes may be pertinent
concerning the Copyright Claims Board.
SEC. 5. SEVERABILITY.
If any provision of this Act is declared unconstitutional, the validity of the remainder of this
Act shall not be affected.
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